Lesbian couple takes on Michigan’s same-sex marriage ban

April DeBoer, second from left, sits with her adopted daughter Ryanne, 3, left, and Jayne Rowse, fourth from left, and her adopted sons Jacob, 3, middle,...

AP Photo/Paul Sancya

Jayne Rowse and April DeBoer never thought they’d be crusaders for marriage equality. After being together for more than 13 years and welcoming three adopted children into their lives, “we’re already married, in our minds” said April to msnbc.com, her children’s laughter coming through over the speakerphone.

It’s sometimes difficult to get ahold of April and Jayne at the same time, their attorney warned, as both women work as nurses–April in the NICU, and Jayne in the ER–but you can usually reach one of them. The two women make sure to stagger their shifts at the hospital so that one parent can stay home with their three adopted children–4-year-old Nolan, 3-year-old Jacob, and 3-year-old Ryanne–all born with varying medical issues. Jacob was born at 25-weeks with special needs and has “had a huge struggle” developmentally, said April. Their daughter Ryanne has also had to overcome some delays after being abandoned by her biological mother–who suffered from drug addiction and received no prenatal care–shortly after she was born at the hospital where April works. Despite these early challenges, however, the children are all doing great, said their parents cheerfully.

While April and Jayne’s lives differ very little from those of any other parents in Hazel Park, Mich., they in fact have an odd arrangement. Jayne is the legal parent of Nolan and Jacob, while April is the legal parent of Ryanne. The state does not legally recognize both women as the parents of all three kids, even though both women are raising the children together as a family. That’s because under the Michigan adoption code, only a single person, a married couple, or one-half of a married couple can adopt a child. And because the marriage amendment to the Michigan Constitution limits marriage to opposite-sex couples, the state’s adoption law prevents same-sex couples from adopting together.

On Thursday, April and Jayne will appear before a federal judge to challenge both the Michigan adoption code, and the state’s ban on same-sex marriage, in what could potentially be a watershed moment for marriage equality.

For Dana Nessel, one of April and Jayne’s attorneys, the chance to argue against Michigan’s treatment of same-sex couples can’t come soon enough. “It’s so dumb,” she said of Michigan’s adoption code. “If you are legally married, one of the two people can adopt without even the advice or consent of the other person…. You could be single, or a married couple, or one-half of a married couple, but the law still excludes same-sex couples because they can’t legally marry.”

Nessel has been working with April and Jayne since 2011, when the couple first approached her about an estate matter. They wanted to challenge the Michigan adoption code so that their kids could have all the same legal protections given to children of heterosexual parents. As it stands, the state denies April and Jayne the right to make medical decisions for all their children, the right to leave property and benefits to all their children, and even the right to see all their children in the event that their relationship with each other ends.

“I wanted to challenge that law forever,” said Nessel, who has handled multiple cases before involving gay parents who have lost access to their children as a result of Michigan’s adoption restrictions.

“In Michigan, you could have a child who is 14-years-old forced back into foster care, after spending his whole life with his same-sex parents,” said Emily Dievendorf, director of policy at Equality Michigan, an LGBT advocacy group. “When the legal guardian decides he or she wants to move across the country, this law can deny access for the other parent.”

Michigan is not the only state that prohibits same-sex couples from jointly adopting, but it is one of the few that does not give parents in same-sex relationships the opportunity to adopt their partner’s child–a process known as second-parent adoption. While there is no law in Michigan that explicitly bans second-parent adoption, there is also no law that expressly allows it. Up until 2002, some judges were granting adoptions to unmarried partners, but they were pressured to stop that year by Michigan’s then-Supreme Court Justice Maura Corrigan.

“Michigan is a fascinating and unique place in that we have neither a law that bans same-sex couples from adopting, nor do we have a law that allows it,” said Dievendorf. However, “Michigan is one of the few states where there has been a decision made that specifically asks that gay people not be issued legal rights to children,” she said of the Corrigan ruling.

April and Jayne set out to challenge only the adoption code so it could include a path for second-parent adoption. Nessel and her team agreed to take on the case pro bono, and argue in federal court that Michigan’s adoption law was unconstitutional in that it discriminated against same-sex parents without serving a legitimate state purpose.

On August 29, Nessel went before U.S. District Judge Bernard Friedman, a Reagan appointee, to challenge the adoption law, and said she was “shocked” by what he had to say. “He said I think this issue is not about the adoption code, I think it’s about marriage,” said Nessel. “What you need to do is challenge the marriage amendment.”

Friedman gave Nessel and her team ten days to amend their complaint so it included a challenge to Michigan’s ban on same-sex marriage, which was enacted in 2004 by voter referendum. Given the scope of the challenge, however, ten days felt like an incredibly short amount of time, especially in comparison to the legal team and resources devoted to challenging California’s ban on same-sex marriage, Proposition 8. “We didn’t raise any money for this,” said Nessel. “It was just a few of us who decided these laws were brazenly unconstitutional.”

“We never in our wildest dreams thought it would go this way,” said Jayne. “We never set out to fight for gay marriage. We just wanted second-parent adoption… This was quite a twist for us.”

For a conservative judge to invite a challenge to a state ban on same-sex marriage is unusual, say LGBT advocates, and could be viewed as a reflection of the country’s turning tide on the issue. A recent survey conducted by Michigan State University found that 56% of the state’s residents support same-sex marriage, up six points from two years ago, and advocates are encouraged by the growing support. “For the first time in Michigan, a majority of citizens are in support of marriage equality,” said Dievendorf, who also noted a growing coalition of young Christians and conservative lawmakers on the side of equality.

But Michigan’s LGBT community still has a long fight ahead. “It’s perfectly legal to be fired in Michigan if you are gay, or perceived gay,” said Dievendorf, who was hard at work on Tuesday pushing for city commissions to adopt human rights ordinances. “We’re working to pass them in cities because the state doesn’t provide protection for LGBT communities,” she said. “We just got our 22nd human rights ordinance passed today.”

Michigan’s government is across-the-board Republican-controlled, and more conservative than its citizenry, some feel. “Our leadership right now does not represent us at all,” said Dievendorf. “Michigan residents tend to be more moderate.”

“Michigan is literally dead last in the entire country in terms of any legal rights for same-sex couples,” said Nessel. “I’ve lived here my whole life. It’s embarrassing to me.”

On Thursday, Nessel will appear in court opposite representatives from the offices of Gov. Rick Snyder and Attorney General Bill Schuette, who have each filed a motion to dismiss on the grounds that the state’s marriage amendment does in fact serve a legitimate state interest–protecting children. Said the state in a court filing, according to the AP, “Michigan supports natural procreation and recognizes that children benefit from being raised by parents of each sex who can then serve as role models of the sexes both individually and together in matrimony.”

Should Judge Friedman deny the state’s motion and rule in favor of April and Jayne, Nessel is anticipating a long legal battle ahead. “They’re very defiant, very beholden to their conservative base,” she said of Gov. Snyder and Attorney General Schuette. “There will be no throwing in the towel for them.”

“There are so many possible scenarios that could unfold after Thursday,” said Dievendorf. “At this point in history, the power of our judicial system to determine the speed of progress is unimaginable.”

Regardless of the outcome, however, gay rights advocates feel that Thursday’s hearing will be an important step for marriage equality. Later in the month, the Supreme Court will hear challenges to California’s ban on same-sex marriage, as well as the Defense of Marriage Act. And just last week, President Obama spoke out against same-sex marriage bans during a news conference at the White House. “My personal feeling is, yes, the tide has turned,” said Jayne. “The civil rights movement went through all this too, and it took a lot of struggle,” she continued. “The bottom line is about the children, and Michigan doesn’t protect our children.”

Update: Judge Friedman said in court on Thursday that he will delay ruling until after the U.S. Supreme Court hears challenges to Prop. 8 and DOMA at the end of the month. Friedman expects this case to be resolved by June.